[2005] KEHC 2911 (KLR)
The court held that the Defendants, having lodged a Notice of Appeal against the ruling of Justice Ondeyo, are precluded from seeking a review of the same order under Section 80 and Order XLIV of the Civil Procedure Act and Rules. The simultaneous invocation of both appellate and review jurisdictions is not...
Source-derived case information.
- Citation
- [2005] KEHC 2911 (KLR)
- Parties
- Plaintiff: Protein and Fruit Processors Limited; Defendant: Credit Bank Limited; Defendant: Lincoln Irungu Kamau; Defendant: Joseph M. Gikonyo t/a Garam Investments
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 128 of 2003
- Procedural Posture
- Civil Case / Ruling on Application to Review, Vary or Set Aside Previous Order
- Outcome
- application struck out with costs
- Legal Topics
- Review of Court Orders, Right of Appeal, Injunctive Relief, Charge Instruments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Protein and Fruit Processors Limited
Plaintiff
Credit Bank Limited
Defendant
Lincoln Irungu Kamau
Defendant
Joseph M. Gikonyo t/a Garam Investments
Defendant
Procedural Posture
Civil Case / Ruling on Application to Review, Vary or Set Aside Previous Order
Legal Issues
- 1 Whether a party can pursue both an appeal and a review of the same court order simultaneously.
- 2 Whether the application for review, variation or setting aside of the order is competent in light of the pending appeal.
Ratio Decidendi
The court held that the Defendants, having lodged a Notice of Appeal against the ruling of Justice Ondeyo, are precluded from seeking a review of the same order under Section 80 and Order XLIV of the Civil Procedure Act and Rules. The simultaneous invocation of both appellate and review jurisdictions is not permitted. Since the notice of appeal was filed and not withdrawn, the application for review, variation, or setting aside of the order is incompetent and cannot be entertained. The court therefore struck out the Defendants' application with costs.
Court Disposition
application struck out with costs
Orders
- The Defendants' application dated 16th March 2004 and filed on 17th March 2004 is struck out with costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL DIVISION – MILIMANI
CIVILCASE NO. 128 OF 2003
PROTEIN AND FRUIT
PROCESSORS LIMITED :::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF
VERSUS
CREDIT BANK LIMITED ::::::::::::::::::::::::::::::::::::::::::1ST DEFENDANT
LINCOLN IRUNGU KAMAU ::::::::::::::::::::::::::::::::::::2ND DEFENDANT
JOSEPH M. GIKONYO
T/A GARAM INVESTMENTS :::::::::::::::::::::::::::::::::3RD DEFENDANT
RULING
This is an application expressed to have been brought under orders XLIV Rules 1,2,3 and 4 L of the Civil Procedure Rules, Sections 3A and 80 of the Civil Procedure Act and all enabling provisions of the Law. It is by the Defendants and they seek to review, vary and/or set aside the Ruling and Order of Justice Ondeyo made on 18th September, 2003 on the following main grounds:-
1. That the said order clogs the charge’s right under the charge instrument.
2. That the Plaintiff is indeed indebted to the Defendant
3. That it is not in the interest of justice to render impotent all efforts by the 1st Defendant to realize its security.
4. That in the interests of justice the said order should be reviewed and varied to restrict the injunctive order to the auction of 18. 2.2003.
In support of the application the Defendants/Applicants have filed an affidavit sworn on 17th March 2004 by Mr. Ashitiva B. Mandale Advocate for the Defendant.
Having looked at the documents filed herein including the application by way of Notice of Motion, the affidavits, the annextures the grounds of objection, it has emerged that the Defendants have lodged a notice of Appeal against the said Ruling of Ondeyo J.This Notice of Appeal was lodged on 1st October, 2003. In the course of his submissions Counsel for the Defendants/Applicants intimated that the Defendants/Applicants are still desirous of pursuing their appeal against the said ruling of Ondeyo J.
In my view, it is not open for a party to invoke both jurisdictions of appeal and review at the same time. The Defendants/Applicants opted to pursue the appeal when they lodged their Notice of Appeal on 1st October, 2003. The filing of this notice unless withdrawn excluded the procedure under Section 80 and order XLIV of the Civil Procedure Act and Rules.
This application to my mind is incompetent. I do not therefore have to consider the rest of the issues canvassed before me. Accordingly the Defendants’ application dated 16th March 2004 and filed on 17th March 2004 is struck out with costs.
DATED AND DELIVERED AT NAIROBI THIS 11TH DAY OF FEBRUARY, 2005.
F. AZANGALALA
JUDGE
Read in the presence of: